United States Court of Appeals

For the First Circuit

No. 08-1516

UNITED STATES OF AMERICA,

Appellee,

v.

EDUARDO PAGÁN-RODRÍGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lynch, Chief Judge,

Selya and Lipez, Circuit Judges.

David W. Román and Brown & Ubarri on brief for appellant.

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney (Appellate Chief), and

Julia Meconiates, Assistant United States Attorney, on brief for

appellee.

March 31, 2010
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SELYA, Circuit Judge. This appeal raises an issue as to

the district court's authority to postpone indefinitely the holding

of a supervised release revocation hearing. We conclude that the

court below unreasonably delayed the holding of the hearing, but

that its error was harmless. Accordingly, we affirm.

The facts are straightforward. On October 8, 1993, the

district court sentenced defendant-appellant Eduardo PagánRodríguez to a 120-month prison term following his conviction for

a federal drug-trafficking offense. See 21 U.S.C. § 841(a)(1).

The court simultaneously imposed a five-year term of supervised

release. The appellant completed his prison sentence and began

serving his supervised release term in April of 2002.

On December 20, 2006 — during the currency of his

supervised release — the probation department moved for issuance of

an arrest warrant, charging that the appellant had broken the

conditions of his supervised release. Specifically, the probation

department alleged that the appellant (i) had been arrested by

local authorities for narcotics offenses; (ii) had failed to report

the arrest on his subsequent monthly supervision reports; (iii) had

failed to notify his probation officer of the arrest within 72

hours; and (iv) had consorted with a convicted felon. The district

court issued the requested warrant on January 30, 2007.

The appellant appeared in the district court on February

12, 2007, at which time a magistrate judge ordered him temporarily
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detained. Three days later, the magistrate judge held a

preliminary revocation hearing. Although the appellant accepted

the failure-to-report and failure-to-notify violations, he disputed

the remaining (more serious) charges. The judge found probable

cause and referred the matter for a final revocation hearing.

The final revocation hearing was scheduled for March 16,

2007. On that date, the district court, acting sua sponte,

declined to proceed, instead continuing the hearing sine die while

awaiting the resolution of the narcotics charges then pending

against the appellant in the local court.

Nine months passed without any further activity. On

December 18, 2007, the appellant moved to dismiss the revocation

proceeding, asserting that the protracted delay in holding the

final revocation hearing violated his right to due process of law.

Three months later, the probation department responded by moving

for disposition of its pending revocation motion on the merits.

This motion noted that the appellant had admitted guilt in the

local court with respect to the recent narcotics charges and, on

February 7, 2008, had been sentenced to a total of eight years'

imprisonment.

Spurred by these filings, the district court scheduled a

final revocation hearing for March 14, 2008. At that time, the

court denied the appellant's motion to dismiss the revocation

proceeding. The appellant acknowledged that he had been convicted
 The right to a timely hearing is assured, more generally, by 1

the Due Process Clause. Some courts have analyzed failures to hold

timely revocation hearings in terms of a constitutional benchmark.

See, e.g., Santana, 526 F.3d at 1259. Whether viewed as a breach

of the rule or of the Due Process Clause, the result in this case

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on the local narcotics charges. Consequently, the district court

revoked his supervised release and imposed a thirty-month

incarcerative sentence, consecutive to the sentence previously

imposed by the local court. This timely appeal followed.

The appellant advances only a single claim of error. He

asseverates that indefinite postponement of his final revocation

hearing infringed his right to have the hearing held within a

reasonable period of time. This claim presents a question of law

and, as such, engenders de novo review. United States v. Santana,

526 F.3d 1257, 1260 (9th Cir. 2008); United States v. Ramos, 401

F.3d 111, 115 (2d Cir. 2005); see also United States v. Rondeau,

430 F.3d 44, 47 (1st Cir. 2005).

The prospect of revocation of conditional release places

in jeopardy an offender's conditional liberty. That jeopardy is

exacerbated by the possibility of detention pending the holding of

a revocation hearing. The offender, therefore, has a right to a

timely hearing on a motion for revocation of supervised release.

Once the district court has determined that there is probable cause

to believe that a violation may have occurred, a final revocation

hearing must be held "within a reasonable time." Fed. R. Crim. P.

32.1(b)(2).1
would be the same.

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In this case, the district court continued the final

revocation hearing sine die, pending resolution of the local

narcotics charges. As a result, the hearing was delayed for nearly

a year. Consequently, the question before us reduces to whether,

on these facts, a twelve-month period of delay was reasonable.

Reasonableness has a protean quality. What is reasonable

in one set of circumstances may be unreasonable in another set of

circumstances. Cf. United States v. Rodriguez-Morales, 929 F.2d

780, 785 (1st Cir. 1991) (describing "reasonableness" in the

community caretaker context as "embody[ing] a concept, not a

constant").

Here, the relevant circumstances can easily be

catalogued. At the time of the continuance, there was no date

certain for disposition of the charges pending against the

appellant in the local court. There is nothing to indicate that

witnesses or evidence were unavailable to the district court.

Plainly, the district court was competent to act on its own, and

the standards for finding an offender in violation of a supervised

release condition are different from, and not dependent on, the

standards for finding a criminal defendant guilty beyond a

reasonable doubt. Compare, e.g., United States v. Oquendo-Rivera,

586 F.3d 63, 66 (1st Cir. 2009) (explaining that government's

burden at revocation hearing was to prove, by a preponderance of
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the evidence, the conduct giving rise to the potential revocation

hearing), with, e.g., United States v. Piper, 298 F.3d 47, 59 (1st

Cir. 2002) (explaining that, for a criminal conviction, government

has the burden of proving guilt beyond a reasonable doubt).

To be sure, when an offender's conduct is alleged to

violate both a condition of his supervised release and a state

criminal law, a state court adjudication of the latter may be

relevant to a federal adjudication of the putative supervised

release violation. See, e.g., United States v. Poellnitz, 372 F.3d

562, 571 (3d Cir. 2004); United States v. Chaklader, 987 F.2d 75,

77 (1st Cir. 1993). But supervised release is itself a valuable

commodity, and a district court cannot leave an offender in limbo

indefinitely while waiting for a state court to adjudicate a

counterpart criminal charge. See United States v. Reeks, 441 F.

Supp. 2d 123, 125 (D. Me. 2006). In the absence of consent or some

compelling reason for delay, an offender is entitled to the timely

holding of a final revocation hearing. See Fed. R. Crim. P.

32.1(b)(2). 

In this instance, the appellant did not consent to the

delay. Nor did the government seek to postpone the hearing. The

circumstances were not out of the ordinary and, for aught that

appears, there was no compelling reason to wait indefinitely for the

counterpart criminal cases to run their course. On these facts, the
Similarly, if the violation were to be analyzed in due 2

process terms, relief from the judgment would not be mandated

unless the violation caused prejudice; that is, unless it affected

the offender's substantial rights. Santana, 526 F.3d at 1260.

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delay was objectively unreasonable: the district court, as a matter

of law, waited too long before holding the final revocation hearing.

This conclusion does not end our journey. Although

unreasonable delay in holding a final revocation hearing constitutes

a violation of Rule 32.1(b)(2), that violation does not require

vacation of the judgment unless it affected the offender's

substantial rights. See Santana, 526 F.3d at 1260 (requiring a 2

showing of "both unreasonable delay and prejudice"); United States

v. Throneburg, 87 F.3d 851, 853 (6th Cir. 1996) (similar).

There is no semblance of prejudice here. The appellant

notes that he remained in custody during the period of approximately

one year that elapsed between the sua sponte continuance and the

holding of the hearing. In many cases, the loss of a year would

constitute significant prejudice. See, e.g., United States v.

Rasmussen, 881 F.2d 395, 398-99 (7th Cir. 1989) (noting that a delay

of thirteen months gives "pause" to the court and requires a more

stringent review of the other factors in the analysis for

prejudice). Here, however, the appellant pleaded guilty to the

Puerto Rico narcotics charges, and he does not suggest that the

delay in holding the revocation hearing influenced that plea. Then,

when the hearing was belatedly held, the district court sentenced
 A few courts have held that a district court does not have 3

authority to run a sentence for a supervised release violation

consecutive to a state sentence not yet imposed. See, e.g., United

States v. Clayton, 927 F.2d 491, 493 (9th Cir. 1991). Under this

view, the appellant might be able to argue that delaying the

hearing until after the Puerto Rico court had sentenced him was

prejudicial. We need not speculate. Passing the point that

Clayton exemplifies a minority rule, see, e.g., United States v.

Sumlin, 317 F.3d 780, 782 (8th Cir. 2003); United States v.

Hernández, 234 F.3d 252, 256 (5th Cir. 2000); United States v.

Williams, 46 F.3d 57, 58-59 (10th Cir. 1995); United States v.

Ballard, 6 F.3d 1502, 1510 (11th Cir. 1993), the appellant has not

made such an argument. It is, therefore, waived. United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 

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the appellant to thirty months in prison. The appellant does not

claim either that this sentence was inappropriate or that, if

sentenced earlier, this punishment would have been more lenient.3

Finally, the court gave the appellant credit for all the time that

he had spent in custody while awaiting the holding of the final

revocation hearing. The end result is that the appellant will serve

only the time that he would in any event have served. He did not,

therefore, suffer any cognizable prejudice. See Santana, 526 F.3d

at 1261 (noting that offender did not suffer prejudice through

unreasonable delay when prerevocation incarceration was fully

credited against the sentence eventually imposed). Nor did the

appellant suffer cognizable prejudice even though the delay resulted

in his inability to ask the local court to sentence him concurrently

with the federal term of imprisonment. See Throneburg, 87 F.3d at

853 (noting that defendant did not suffer prejudice though delay

resulted in defendant's inability to request state court to allow
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concurrent sentences). That speculative opportunity to request

leniency in the local court does not render his federal sentence

improper.

We need go no further. Although we find error in the

district court's decision to put off the final revocation hearing

sine die, that error was harmless because it caused no prejudice to

the appellant. The judgment appealed from may, therefore, stand.

Affirmed